ESI: Don’t get Duped

By Jim Parrish

To “dupe” someone means to trick or take advantage of them. In discovery, “re-duping” can mean imposing an unnecessary burden on a party requesting electronic discovery. The good news for parties requesting ESI is that they can use the Meet & Confer process to avoid being “re-duped.”

Here’s how it works: When corporations gather electronic records they can readily identify duplicate records and then review only one copy for responsiveness and relevance. This “de-duping” significantly reduces the volume of records to be reviewed and hence greatly reduces review costs.

But here’s the rub: when the producing party has decided what to produce, it may provide each of the duplicate copies to the requesting party – a process called “re-duping.” Re-duping has the opposite effect of de-duping – it greatly increases the volume being produced and the costs of handling it.

One variant of the de-duping and re-duping strategy is to de-dupe within the records of a specific custodian, i.e. produce one copy for each custodian who had a copy. This reduces volume somewhat but still causes one email copy to be produced for each recipient who produced copies.

Sometimes requesting parties agree to custodian de-duping in the mistaken belief that they need custodian-level deduping so that they’ll know who had a copy of each record. However, they could achieve a substantial reduction in the volume of records produced without a loss of custodian-specific information. This is done by negotiating for productionlevel de-duping along with an electronic listing of each custodian who had a copy of each record. This list should include the path and folder where each copy was located. This augmented information can then be loaded in a “source” field in the database for ready reference to who had each record and where it was located.

Note that even if the producing party does not agree to project-level de-duping, the requesting party can still de-dupe the collection for its own working purposes, it just involves extra work.

Link to suggested language for discovery/protective orders.